Kuldeep Kumar Alias Kapil vs State Of Himachal Pradesh

Chander Bhusan Barowalia, J

The matter is taken up through video conference.

The instant bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure for grant of bail, in case FIR

No. 233 of 2019, dated 16.10.2019, under Sections 363, 376 and 504 of Indian Penal Code and Section 4 of Prevention of Children from Sexual

Offences Act, registered at Police Station Boileauganj, District Shimla, H.P.

As per the petitioner, he is innocent and has been falsely implicated in the present case. He is permanent resident of the place and neither in a

position to tamper with the prosecution evidence nor in a position to flee from justice, so he may be released on bail.

Police report stands filed. As per the prosecution, on 16.10.2019, police of police Station Boileauganj received a written complaint, wherein the

complainant, father of the prosecutrix, stated that on 14.10.2019, his daughter (prosecutrix, name withheld), who is a student of 10+2, did not return to

home after attending the school. Thereafter, they launched extensive search operation, but no clue about the prosecutrix was found. On the same day

one Kuldeep Kumar @ Kapil (petitioner herein) was also missing from the village, so the complainant had suspicion that the petitioner enticed the

prosecutrix and took her with him. Upon the complaint, so made by the complainant, police registered a case under the apt sections and the

investigation ensued. During the course of investigation, on 05.11.2019, police recovered the prosecutrix and the petitioner from an accommodation

located in Palampur, Kangra. Police completed all the codal formalities and effected the relevant recoveries. The petitioner was arrested and

medically examined. The prosecutrix was subjected to medical examination and as per the Medical Officer, sexual intercourse could not be ruled out.

The statement of the prosecutrix was recorded under Section 164 Cr.P.C. Police prepared the spot map and recorded the statements of the

witnesses. Police also procured the records pertaining to the date of birth of the prosecutrix and she was found to be born on 03.08.2002. During the

course of investigation, it was unearthed that on 14.10.2019, at about 09:00 a.m., when the prosecutrix was en route school, the petitioner made her to

board his vehicle and took her to Jawali, Kangra. They stayed in the rented accommodation at Palampur, where the petitioner committed repeated

sexual intercourse with the prosecutrix. When the prosecutrix started bawling, during the sexual intercourse, the petitioner threatened her to eliminate

her. Police collected the scientific samples and sent the same for forensic analysis. As per the police, in case the petitioner, at this stage, is enlarged

on bail, he may threaten the prosecutrix and her family members and may also indulge in such acts again. Investigation in the matter is complete and

supplementary challan stands presented in the learned Trial Court. Lastly, it is prayed that the application of the petitioner be dismissed, as he was

found involved in a serious crime, the petitioner in case, at this stage, is enlarged on bail, may tamper with the prosecution evidence and may also flee

from justice.

I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the records, including the

police report, carefully.

The learned Sr. Counsel for the petitioner has argued that the petitioner is innocent and he is neither in a position to tamper with the prosecution

evidence nor in a position to flee from justice, as he is permanent resident of the place. He has further argued that the petitioner is behind the bars for

the last more than one year and cannot be kept behind the bars for an unlimited period. He has argued that investigation in the case is complete,

nothing remains to be recovered at the instance of the petitioner, custody of the petitioner is not at all required by the police and the petitioner is ready

and willing to abide by all the terms and conditions of bail, in case granted, so the petition may be allowed and he be enlarged on bail. Conversely, ,

learned Additional Advocate General has argued that the petitioner has committed serious offence and in case, at this stage, he is enlarged on bail, he

may threaten the prosecutrix and her family members and may again indulge in such activities again. He has further argued that considering the

seriousness of the offence, the petition may be dismissed.

In rebuttal the learned Senior Counsel for the petitioner has argued that the petitioner is local resident of the place and thus is neither in a position to

flee from justice nor in a position to tamper with the prosecution evidence and the custodial interrogation of the petitioner is not at all required by the

police. He has further argued that the petitioner is behind the bars for the last more than one year and cannot be kept behind the bars for an unlimited

period, especially when investigation is complete, nothing remains to be recovered at the instance of the petitioner and considering the fact that

custody of the petitioner is not at all required by the police, so the petition be allowed and the petitioner be enlarged on bail.

At this stage, considering the manner in which the offence is alleged to have been committed by the petitioner, the fact that it has come in the police

investigation that the petitioner did not use any force upon the petitioner, the fact that the petitioner is resident of the place, so neither in a position to

flee from justice nor in a position to tamper with the prosecution evidence, he is behind the bars for the last more than one year, so cannot be kept

behind the bars for an unlimited period, especially when investigation is complete, nothing remains to be recovered at the instance of the petitioner, the

custody of the petitioner is not at all required by the police also considering the fact that the petitioner is ready and willing to abide by all the terms and

conditions of the bail, in case granted, and considering all the facets of the case and without discussing them elaborately, this Court finds that the

present is a fit case where the judicial discretion to admit the petitioner on bail, in this case, is required to be exercised in his favour. Accordingly, the

petition is allowed and it is ordered that the petitioner, in case FIR No. 233 of 2019, dated 16.10.2019, under Sections 363, 376 and 504 of Indian Penal

Code and Section 4 of Prevention of Children from Sexual Offences Act, registered at Police Station Boileauganj, District Shimla, H.P., shall be

released on bail forthwith in this case, subject to his furnishing personal bond in the sum of Rs.20,000/Â (rupees twenty thousand) with one surety in

the like amount to the satisfaction of the learned Trial Court. The bail is granted subject to the following conditions:

(i) That the petitioner will appear before the learned Trial Court/Police/authorities as and when required.

(ii) That the petitioner will not leave India without prior permission of the Court.

(iii) That the petitioner will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as

to dissuade him/her from disclosing such facts to the Investigating Officer or Court.

In view of the above, the petition is disposed of.

Copy dasti.